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SHRM Seeks Guidance, Safe Harbor on ‘No-Match’ Letters

The Society for Human Resource Management (SHRM) has asked the U.S. Department of Homeland Security (DHS) to provide guidance and a safe harbor for employers who try to verify the work authorization of employees when a Social Security number discrepancy is flagged.

Joining the American Council on International Personnel (ACIP) in sending comments to DHS on Sept. 18, 2009, SHRM said the DHS decision to rescind a regulation setting up procedures for employers to use after they receive a “no-match” letter from the Social Security Administration (SSA) leaves employers “between a rock and a hard place.”

In an Aug. 19, 2009, Federal Register notice and in previous public statements, federal officials signaled that they were charting a new course on how to handle the thorny issue of illegal immigrants in U.S. workplaces. Rules proposed by the administration of President George W. Bush to tell employers how to handle the Social Security no-match letters were being abandoned by the Obama administration. Use of E-Verify, the government’s electronic employment verification system—was to be mandatory for federal contractors.

The E-Verify rule went into effect for contractors on Sept. 8, 2009, and some members of Congress would like to make it mandatory for all employers, despite criticisms of its accuracy. While E-Verify remains controversial, the no-match regulation has received less attention in Washington and in the national news media.

SHRM and ACIP, which represents immigration professionals in corporations, universities and research institutions across the United States, are now reminding DHS that planned rescission of the regulation “will leave employers without direction” in a critical HR process.

In August 2007, the government issued a rule describing the legal obligations of an employer after it receives a letter from the SSA describing a discrepancy between a Social Security number provided by a job applicant and one on file with the government. In addition, the regulation spelled out how employers should handle a letter from DHS regarding employment verification forms.

SHRM and ACIP welcomed the regulation, which provided step-by-step directions for actions once an employer receives such a letter in order for the employer to achieve a “safe harbor” assurance that the letter would not be considered “constructive knowledge” of an unauthorized worker. The rule stated that adherence to these procedures would not result in a violation of immigration laws. SHRM had suggested changes to the regulation as first rolled out, which “were largely met” in the final version published in 2007, SHRM said.

In their new comments to DHS, SHRM and ACIP noted that their members “exercise extraordinary care” to ensure that they comply with all hiring and employment laws and regulations, but the two organizations said that their members need more help from the government.

“Rescinding the guidance and repealing the safe harbor will mean that employerswill remain between a rock and a hard place—wanting to resolve discrepancies but having no guidance on what DHS would consider a good faith attempt to resolve or how to avoid violating anti-discrimination laws through the resolution process.As the rule itself states, there are a variety of reasons a discrepancy may occur, including clerical errors, name changes, or something less benign, such as use of fraudulent or stolen Social Security numbers,” the comments stated.

“There are also a variety of explanations and/or new documentation an employee might provide to explain the discrepancies that reasonably appear genuine on their face,” the organizations continued.“Without explicit guidance and protection, employers may hesitate to delve too deeply into a situation for fear of facing a discrimination claim.This leaves employers in the same quandary from which they sought relief.”

In its notice announcing its rescission of the no-match rules, DHS said it is providing additional tools for employers to use to comply with their legal obligations: voluntary participation in the ICE (U.S. Immigration and Customs Enforcement) Mutual Agreement Between Government and Employers (IMAGE) program, electronic filing of W-2 forms and improvements to E-Verify.

SHRM and ACIP said these are not enough. “We believe employers still have a need for both guidance and safe harbor protection from no-match letters and DHS notices relating to document discrepancies, and that the other tools DHS employs to combat unauthorized employment do not address these needs,” the organizations wrote in their comments to DHS.

“Not all employers participate in these programs, nor are they foolproof,” SHRM and ACIP stated. Even if they use such tools, “employers will still be faced with the dilemma of reacting to discrepancies involving names, Social Security numbers, work authorization documents, and inconsistencies revealed through audit,” said SHRM and ACIP. In fact, “ICE officials have stated that they intend to continue to look at employers’ responses to no-match letters when investigating worksites.We would respectfully argue that providing guidance to employers seeking to avoid any need for worksite enforcement is a preferable tool for prevention.”